The Supreme Court judgment on September 27, 2018 that set aside Section 497 of the Indian Penal Code (IPC)– a 158-year law that punished a man for adultery—brought my attention to the issue. While some people welcomed the decision as being progressive, some others welcomed for getting rid of a colonial law. On the other hand, many also criticized it for being anti-women and for undermining the institution of marriage.
In the light of these diverse opinions, it would be instructive to examine the Indic perspective of adultery through a study of primary textual resources of dharmaśāstra and kāmaśāstra tradition, which would not only be our gateway into classical Indian society, but would also help us to align our present society and values with the Dharmic worldview.
Conception of Adultery in Indian Tradition
Adultery which is called “Saṅgrahaṇa” in the dharmaśāstra-s has been given an extensive treatment in Indian texts. Indian tradition perceives adultery at three levels: physical, verbal, and mental. While physical is considered the worst, the mental is designated as the secret kind. Viṣṇu Purāṇa (3.11), for example, notes that a man should not even think incontinently of another’s wife, much less speak to her to that end. It adds that one who commits adultery is punished both here and hereafter, with his lifespan reduced in the current life, and he entering the realms of suffering upon death. Manusmṛti (5.165) likewise notes that a virtuous wife is one who has her thoughts, words, and actions under restraint.
A more graphic description of what constitutes adultery is found in some of the smṛti-s. Manusmṛti (8.356-358) observes: “If a man converses with the wife of another at a sacred ford, in a wild tract, in a forest, or at the confluence of rivers, he is guilty of adultery. Doing favors, dallying, touching the ornaments or clothes, and sitting together on a bed—all this, tradition tells us, constitutes adultery. When a man touches a woman at an inappropriate place or permits her to touch him—all such acts done with mutual consent, tradition tells us, constitute adultery (Olivelle, 2005).” This is further elaborated in the Nāradasmṛti (12. 62-69), which notes: “To meet with another man’s wife in an unseasonable hour or place, and to sit, converse, or dally with her, these are the three grades of adultery. When a woman and a man have meetings at the confluence of two rivers, at a Ghât, in a garden, or in a park, it is also termed adultery. By the employment of go-betweens, dispatch of letters and other criminal proceedings of various kinds, adultery may be found out by the knowing. If one touches a woman in a place (where it is) improper (to touch her) or allows himself to be touched (in such a spot), all such acts, done with mutual consent, are declared to be adultery. Bestowing attentions (on a woman), sporting (with her), touching her ornaments and clothes, sitting with her on a bed, all such acts are (also) declared to be adulterous. If a man seizes a woman by the hand, by a braid of hair, or by the border of her gown, or if he calls out, ‘Stop, stop,’ all such acts are (also) declared to be adulterous. By the sending of clothes, ornaments, garlands of flowers, drinks, food, and fragrant substances, adultery may (also) be discovered by the wise. When a man, actuated by vanity, folly, or braggartism, declares himself, that he has enjoyed the love of a certain woman that is also termed an adulterous proceeding (Jolly, 1889).”
Thus, Indian tradition not only recognized the actual act of sexual intercourse with a married person as adultery, but also any thoughts, words, or actions leading to it was considered as adultery.
Adultery as Adharma: Penance, Punishment & Exceptions
The marriage or vivāha is understood as a saṃskāra- a sacrament and a purificatory ritual that allows a couple to enter the gr̥hastha-āśrama or the stage of householder to pursue dharma, artha, kāma, and mokṣa together. It is a sacred bond standing on the three pillars of rati (desire), dharma (duty), and prajā (progeny). It is a special relationship which involves both saha-dharma and saṃbhoga, i.e. a pursuit of duties and the experiencing of life, both of which must be accomplished together. In other words, sexual intimacy and fidelity to each other are vital for the very existence of the relationship of marriage. It is no surprise then that Mahābhārata (Anuśāsana parva 45.9) states thus: “The relationship between wife and husband, as between woman and man, is very intimate and subtle, with sexual intimacy as its common characteristics (Badrinath, 2006).”
Since, the notion of togetherness is very central to the Hindu view of vivāha, adultery or Saṅgrahaṇa is perceived as cheating and a breaking of trust and hence, a grave act of adharma. So much so, that Manusmṛti (12.7) lists it among the three kinds of bodily sins that people may commit, the other two being stealing and murder. Further, it notes that a man who commits adultery would become a Brahmarākṣasa after death (12.60), while an adulteress would be born in the womb of a jackal (5.164), both implying a condition of great suffering.
Having said this, it may be noted that compared to killing of a Brahmana, drinking liquor, theft, and intercourse with the preceptor’s wife (which is a special case of adultery)—which are considered Mahāpātaka or great sins causing a person’s fall (Manusmṛti 11.54)—adultery in general is designated as a Upapātaka or a minor crime (Manusmṛti 11.59, Yājñavalkya Smṛti 3.234), which nevertheless causes the loss of varṇa (Āpastamba-Dharmasūtra 220.127.116.11-9).
A number of penances and punishments are prescribed in the dharmaśāstra-s for the offence of adultery. A penance or prāyaścitta is a voluntary act of expiation as a repentance for committing an offence, while a punishment or daṇḍa is a legal penalization of an individual by the king or the state for an offence committed by him/her. Manusmṛti (11.117), for example, suggests a penance called cāndrāyaṇa vrata for adultery. Gautama Dharmasūtra (22.29) suggests chastity for two years as penance. Yājñavalkya Smṛti (1.72) notes that a women can attain purification from adultery at the menstrual period. The commentators note that this was applicable to only mental adultery. Baudhāyana Dharmasūtra (2.3.48) suggests a woman who is unfaithful to perform arduous penance. Further it notes at 2.3.49-50 that “If it is with a Śūdra man, she should perform a lunar penance. If it is with a Vaiśya and so forth in the reverse order of classes, she should perform the penance beyond the very arduous and so forth (Olivelle, 1999).” Various other expiation rites have been suggested for both men and women who indulge in adultery. In the case of women, though, if she conceives as a result of adultery, there appears to be no penance prescribed for her.
Coming to punishments, dharmaśāstra-s prescribes different degrees of punishment catering to different situations and varṇa-s of the people involved in it. It prescribes punishments to both men and women who commit adultery. Severest of punishments are mentioned in Manusmṛti, perhaps to cater to extreme situations. Verse 8.352, for example, states: “When men violate the wives of others, the king should disfigure their bodies with punishments that inspire terror and then banish them (Olivelle, 2005).” Likewise in verse 8.371-372, it states “When a woman, arrogant because of the eminence of her relatives and her own feminine qualities, becomes unfaithful to her husband, the king should have her devoured by dogs in a public square frequented by many. He should have the male offender burnt upon a heated iron bed; they should stack logs and burn up that villain there (Olivelle, 2005).” Nevertheless, Manusmṛti also prescribes various amounts of fines for adultery between men and women belonging to different varṇa-s, which implies that severest punishments were given only in extreme and exceptional cases.
A similar account of punishments are found in Nāradasmṛti (12.70), which says “When a man has connexion with a woman of his own caste, a fine of the highest degree (shall be inflicted on him); and the middling fine, when he has connexion with a woman of lower caste; and capital punishment, when he has connexion with a woman of superior caste (Jolly, 1889).” In the case of women commuting adultery, it says at 12.91: “When a married woman commits adultery, her hair shall be shaved, she shall have to lie on a low couch, receive bad food and bad clothing, and the removal of the sweepings shall be assigned to her as her occupation (Jolly, 1889).” A similar statement is made in Yājñavalkya Smṛti (1.70): “An adulteress is to be allowed to live, deprived of her authority, dirty, fed with a view to sustain life only, dishonoured, sleeping on the ground (Somayaji, 2006).”
What is clear from above is that adultery was not considered merely a personal issue to be resolved by the married couple among themselves. Instead, Manusmṛti (8.386-387) goes to the extent of saying: “The king in whose capital there is no thief, no adulterer, no person who uses offensive speech, no person who uses violence, and no person who commits physical assault, will attain the world of Indra. The suppression of these five within his territory secures for the king paramountcy among his peers and fame among his people.” The reason was that adultery was perceived as a serious breach of trust and an act of cheating which undermined the very institution of marriage, which in turn would lead to social disorder and chaos. As Manusmṛti (8.353) itself notes: “such violations give rise to the mixing of social classes among the people, creating deviation from the Law that tears out the very root and leads to the destruction of everything.”
If it is asked, what about the future of the relationship if a partner commits adultery? The dharmaśāstra-s are clear that in case the wronged partner wishes so, he or she can leave the other who had committed adultery. Yājñavalkya Smṛti (1.72), for example, notes that if a woman conceives through adultery, the husband can leave her. Likewise, Yama Smṛti [quoted in Balambhatti, a gloss on Mitākṣarā commentary on 1.72 of Yājñavalkya Smṛti] notes that a wife who is adulterous could be renounced. On the other hand, Parāśara Smṛti (4.30) notes that women can leave their husbands under five circumstances which includes his becoming fallen due to adharma, which as we already noted before includes adultery as well. While separating from the partner has been given as an option in the event of adultery, “there is no absolute right of abandonment of wife in the husband on the ground of adultery (Kane, 1941, p. 572).” In fact, renouncement of the wife was suggested only in the extreme case, and instead the wife was advised to undergo penances prescribed for her, at the completion of which, she is to be restored to all her privileges (Kane, 1941, p. 572). Likewise, the wives were also advised not to abandon their husbands in general, except in extreme cases. Nevertheless, both men and women had the option to become separated from their spouses upon the discovery of adultery on the part of their spouses.
However, there were notable exceptions to the application of adultery rules.
Kāmasūtra (5.2), for example, notes that while sexual relationship is prohibited with women married to other men, it is neither enjoined nor prohibited with respect to veśyā-s and punarbhū-s, with the former referring to either prostitutes or courtesans, and the latter referring to either widows or remarried women (Daniélou, 1994). It further enunciates at 5.3-4 that nāyikā-s or the women suitable for love affairs were of four kinds: the young (unmarried) girl, the punarbhū, the veśyā, and the pākṣikī (Daniélou, 1994). The Pākṣikī is a consenting married woman. Kāmasūtra notes that while the first three could be approached for the sake of love (5.3), the last i.e. the consenting married woman should not be approached either for progeny or for pleasure, but only during exceptional circumstances (5.12). Likewise, sexual relationship with svairiṇi and niṣkāsinī women was also not prohibited. Svairiṇi were self-willed or independent women who were not bound by the rules of fidelity. Nāradasmṛti (12. 45) describes svairiṇi women as those who have left their husbands and are living with their lovers. Niṣkāsinī-s were women who had left their families and perhaps were living alone (Jolly, 1889). Nāradasmṛti further notes that there were three kinds of punarbhū women and four kinds of svairiṇi women. Women whose husbands were impotent, or were missing, or have gone out for long and have not returned, could also look for new husbands (Nāradasmṛti 12.16-18, 12.24). In verse 12.61, Nāradasmṛti explicitly states: “A man is not punishable as an adulterer for having intercourse with the wife of one who has left his wife without her fault, or of one impotent or consumptive, if the woman herself consents to it (Jolly, 1889).”
Thus, we see that the dharmaśāstra-s provide a lot of flexibility and exceptions to the general rulings with respect to adultery.
The definition of adultery was confined to:
- Men—either married or unmarried– having sexual relationship with married women
- Married women having sexual relationship outside of marriage.
Adultery did not apply to instances of men practicing polygamy, or married men approaching courtesans. Instead, kāma was considered as an art and a form of pleasure in itself. Similarly, certain categories of women like niṣkāsinī, veśyā, etc. were not bound by the rules of fidelity and hence, were beyond the scope of adultery as well. Further, certain groups of people like theatre people, performing artists, musicians, dancers, etc. were kept out of the purview of adultery provisions as well.
Moreover, the very definition of vivāha or lawful marriages were confined to the eight forms of brahma, daiva, ārśa, prājāpatya, asura, gandharva, rākṣÍasa and piśāca and the rules of fidelity and transgressions in the form of adultery were applicable only to them. Though Punarbhū and svairiṇi were considered wives, they were not considered lawful wives, and hence, the stipulations regarding fidelity were quite lenient, flexible, and optional in their case. Further, women who were niṣkāsinī, veśyā, etc. were all outside the confines of vivāha and hence, outside the rules regarding fidelity and adultery.
Nevertheless, Nāradasmṛti (12.79) notes that even in the case of these women (i.e. svairiṇi, niṣkāsinī, veśyā, etc.), if they enter an exclusive and committed relationship with anyone, then approaching them for sexual relationship was prohibited and would be considered adultery.
Contextualizing to Modern India
Classical India was a polygamous society with a different set of moral values than those prevalent today in modern India. Since, the arrival of the European colonialists and with it the Victorian and Christian notions of morality, India has become a completely monogamous society. In the past, while monogamy was held as an ideal and was probably practiced by large sections of the society, the moral and ethical worldview of the society was polygamous one, which accommodated respectable position to the institute of courtesans. Further, there was regions and communities which practiced polyandry as well.
Owing to these differences in the social make up of Classical India and Modern India, we cannot simply copy-paste what was in the past into the present. We need to contextualize the teachings of the dharmaśāstra tradition into our own times. Such contextualization requires, we ask ourselves:
What is adultery in Indian tradition?
What are essential elements that constitute adultery?
What are essential elements of Hindu marriage?
How adultery was treated in society and in law?
In the previous section, we have deliberated upon each of these questions from which we can draw following cardinal principles of dharma which are as applicable today as it was in the past:
- Marriage is built on three pillars of rati, dharma, and prajā. Sexual intimacy and fidelity is central to Hindu notion of vivāha as saha-dharma and saṃbhoga. Hence, adultery is adharma.
- While in Classical India, the definition of adultery was limited to men having sexual relationships with married women and married women having sexual relationship outside marriage, with polygamy, polyandry, courtesan houses, and women categorized as svairiṇi, punarbhū, kāminī, niṣkāsinī etc. being outside the purview of adultery; in Modern India which has become rooted in a worldview derived from Christian West that recognizes only monogamous marriages, the definition of adultery must be reformulated suitably to cater to this monogamous worldview, despite the fact that this worldview has resulted in numerous social issues like increasing divorce rates, serialized polygamy, children growing without one of their parents, etc.
- In this reformulated definition, all sexual relationships outside marriage must be brought under the purview of adultery, since all of them involve a serious breach of trust causing hurt to the partner.
- Adultery not only involves a breach of trust and causing hurt to the spouse, it also undermines the institution of marriage and if unchecked can lead to confusion and chaos in society.
- Adultery is a serious offence and the State is obligated to punish both the partners involved in adultery.
Section 497 & its Decriminalization
While the section 497 of IPC, was a remnant of colonial era rooted in Victorian morality; its decriminalization, which is again a western solution imported into India with no resonance to Indian society, traditions or realities can only lead to dangerous consequences in the long run.
On the one hand, the section 497, which read “Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor” was not only discriminating against men as it penalized only the male partner in adultery, it is also discriminating against wives since they could not complain against husbands who were indulging in adultery. Further, the section was rooted in the colonial notion of adultery as a ‘theft’ of the wife.
On the other hand, decriminalization of adultery undermines the very institution of marriage by legitimizing cheating and adultery. Also, it has created a new legal category of offences that are morally wrong and hence grounds for divorce, but one which cannot be punished. This will have serious consequences in the long term on the entire society, especially to the institution of marriage. Further, the argument of sexual autonomy of a spouse to indulge in consensual sex outside marriage, which was expressed as part of the decriminalization judgment is deeply problematic, since it questions the very basis and definition of marriage as understood in Hindu tradition.
This being the case, the decriminalization of adultery has only added to the confusion and chaos already prevalent due to colonial law and has further opened a new can of worms.
The correct recipe to rectify the aberrations brought in by colonial law is not to import western solutions. Instead, we as a nation should work towards reviving our own tradition of law and ethics i.e. the dharmaśāstra tradition and contextualizing their teachings to our requirements. In the case of adultery, a far for intelligent and culturally more sensitive decision would have been to modify the language in the existing IPC section 497 and make it gender neutral. Such a gender neutral law that penalizes adultery committed by both men and women and allows both the wronged husbands and wives to approach the court would have truly reflected Indic perspective and values and not the decriminalization, which now poses the danger of dismantling the entire institution of marriage in the coming years.
Further, considering the disastrous consequences in terms of increased divorce rates, serialized polygamy, and children having difficult childhood, etc., that have been brought by the Roman Christian monogamy in the west and whose effects we can already see in India as well, perhaps it is time for Indian society to seriously consider whether it would be more beneficial to slowly move away from the current society which legally imposes institutionalized monogamy to a society which has monogamy as the ideal, but without the institutional imposition of it and thus making space for polygamous and perhaps polyandrous marriages to exist side by side monogamous marriages. Such a shift would also be in alignment with our classical India society, which provided space and freedom for people with different tastes, temperaments, and needs to co-exist harmoniously.
I would like to thank Dr. Bharat Gupt and Sankrant Sanu for their valuable inputs.
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